The Committee against Torture, established under article 17
of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,

Meeting
on 15 May 2001,

Having
concluded its consideration of communication No. 147/1999,
submitted to the Committee against Torture under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,

Having
taken into account all information made available by the author
of the communication and the State party,

Adopts
the following decision:

1.1 The
author of the communication is Mr. Y.S., a Turkish citizen of
Kurdish origin born on 7 June 1953 and currently residing in Switzerland,
where he applied for asylum on 18 June 1998. His application having
been turned down, he maintains that his forcible repatriation
to Turkey would constitute a violation by Switzerland of article
3 of the Convention against Torture. He is represented by counsel.

1.2 In
accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on
21 October 1999. At the same time, the State party was requested,
pursuant to rule 108, paragraph 9, of the Committee's rules of
procedure, not to expel the author to Turkey while his communication
was under consideration by the Committee. In a submission dated
14 December 1999, the State party informed the Committee that
steps had been taken to ensure that the author was not returned
to Turkey while his case was pending before the Committee.

The
facts as submitted by the author

2.1 The
author and Ms. S., Turkish nationals of Kurdish origin, married
in 1977 and then lived in their home in Elazig, a town in south-eastern
Turkey. At that time the author owned two shops selling electrical
appliances, one in Elazig and the other in Pertek, a district
of the city of Tunceli where he had grown up. In 1991, he closed
the shop in Pertek, and at the end of 1994 closed the shop in
Elazig because of constant harassment by the police.

2.2 Since the 1980s, the author had been an active supporter of
the leftist Kurdish party known as PSK (Socialist Party of Kurdistan),
which published a newspaper entitled Oezg.rl.k.Yolu. The
author would read and sell this paper, the name of which was often
changed because it was regularly banned. At the same time, he
was an activist in the Turkish Human Rights Association (IHD).

2.3 On
21 March 1993, two IHD representatives in Elazig were murdered.
Their bodies were found in the street bearing obvious signs of
torture: their ears had been cut off and their eyes put out. The
author attended their funerals.

2.4 Until
1994 the author was repeatedly harassed by the police because
of his opinions and political activities. In 1994, the author's
shop was raided by the police, who found a copy of the above-mentioned
newspaper and other PSK publications. The author was forced to
board a minibus and taken blindfolded to an unknown place. For
three days he was severely tortured in an attempt to make him
give information to the police and to become an unofficial collaborator.
Despite the torture methods used, he refused to give any information
or to become an informal collaborator. After three days he was
released. He continued to work in his shops despite constant police
harassment. At the end of 1994, he decided to close the shop in
Elazig.

2.5 From
then on, the author and his family had no fixed abode, living
in three different places: in Kizilkale, where the author's parents
have a farm; in Mersin, where he owns another apartment; and in
Elazig, in a dwelling owned by a friend which they rented a few
months after fleeing.

2.6 One
night in April 1996, the police broke into the rented apartment
in Elazig where the author and his family were sleeping. The author
was beaten and taken to a place where he was physically and psychologically
tortured for two and a half days. He then agreed to work for the
police, who said that he could begin working in two weeks' time.
On being released, he returned to his home, collected his family
and hid them at a friend's home until they left for Istanbul.
While his family members were with this friend, the author's eldest
son, aged 17, was arrested by the police while on his way to see
his grandfather and was held in custody. The police informed him
that he would not be released unless his father came to fetch
him in person. On learning of this, the author and his family
left for Istanbul, where they stayed at the home of one of his
brothers.

2.7 On
4 June 1996, the author, his wife and another son caught a plane
and, via Milan, arrived illegally in Switzerland on 5 June 1996.
All of them were in possession of their passports.

2.8 On
the day of their arrival in Switzerland, the author and his family
applied for asylum. Their application was rejected by the Federal
Office for Refugees on 27 May 1998. The author argues in particular
that, in support of its decision refusing him refugee status,
the Federal Office for Refugees maintained that he had given contradictory
information concerning his place of residence between 1994 and
1996. The author lodged an appeal against this decision, which
was rejected on 3 August 1999 on the grounds that his pleas were
unconvincing. In this appeal, he requested a second medical examination,
which was refused.

2.9 The
author states that he arrived in Switzerland traumatized by the
torture he had undergone. He began a course of medical treatment
on 9 July 1996 and he was also advised to obtain psychological
treatment. On 8 April 1997, the doctors sent the Federal Office
for Refugees a report stating that the author should spend three
weeks in hospital because of pains in his spinal column. On 18
April 1997, a psychiatric report requested by the Federal Office
for Refugees found that he was suffering from post-traumatic stress
disorder.

The
merits of the complaint

3. The
author states that if he were returned to Turkey he would be arrested,
would again be tortured and might be killed in an extrajudicial
execution.

The
State party's observations

4.1 In
a note verbale dated 14 December 1999, the State party declares
that it does not contest the admissibility of the communication.

4.2 As
to the merits of the communication, the State party explains that
the Swiss Appeal Commission on Asylum Matters considered that
the author's statements concerning the period from 1994 until
his second arrest in 1996 were not credible since he had no longer
been in Elazig as from 1994. Moreover, it is difficult to believe
that the author would have hidden at the home of one of his friends,
T.K., since that person was particularly vulnerable politically
and his telephone was being tapped by the Turkish security forces.
In the opinion of the Federal Office for Refugees, there was no
causal link between the author's possible arrest in 1993 and his
departure from Turkey in 1996.

4.3 Furthermore,
the State party emphasizes that the Swiss Appeal Commission on
Asylum Matters, unlike the Federal Office for Refugees, considers
that the allegations concerning the author's arrest and subsequent
torture are also lacking in credibility. It was highly doubtful
that the author would have been able to continue his business
activities for a period of 18 months after having been arrested
and tortured, given the effectiveness of the repression by the
Turkish security forces.

4.4 Similarly,
the State party points out that the medical examination of the
author simply accepted at face value the author's explanation
of the causes of the disturbances from which he was suffering,
without questioning them. For that reason the Swiss Appeal Commission
on Asylum Matters refused to allow a second medical examination.

4.5 In
the view of the State party, the arguments presented by the author
in his communication add nothing to those presented to the Swiss
authorities. On the contrary, in his communication he claims that
he was tortured not in 1993 but in 1994, whereas in the Swiss
internal proceedings he repeated on several occasions that the
events did take place in 1993, in July at the latest.

4.6 In
general, the State party entirely endorses the grounds adduced
by the Swiss Appeal Commission on Asylum Matters in support of
its decision to reject the author's application for asylum.

4.7 In the light of article 3 of the Convention, the State party
points out that, in accordance with the Committee's jurisprudence,
this provision provides no protection to the author, who simply
maintains that he is afraid that he will be arrested on his return
to his country.

4.8 The
State party questions the veracity of certain facts to which the
author has referred only in his communication, such as the name
and address of the friend at whose home he claims to have sought
refuge. Furthermore, he gave the Committee this information on
a confidential basis and on condition that the Swiss authorities
took no action to verify its authenticity. However, the State
party could also have obtained this information in the same conditions.

4.9 The
State party points out that the inquiries undertaken by the Swiss
Embassy in Ankara have shown that the author was not wanted by
the police. His name does not appear in any police records in
relation to possible criminal or political activities. Moreover,
it was not until investigations had been carried out by the Embassy
that the author was obliged to admit that he owned a home in Mersin,
a fact which he had initially concealed from the Swiss authorities.

4.10
On the question of the medical certificates, the State party considers
that they are not sufficient to eliminate the contradictions and
implausibilities contained in the author's statements. The Swiss
Appeal Commission was by no means convinced that the post-traumatic
disturbances from which he claimed to be suffering were the consequence
of the acts of torture which he alleges. In this context, it must
be emphasized that the person who conducted the medical examination
was both the therapist and the person who prepared the expert
report.

4.11
With the exception of the alleged arrest of his eldest son in
April 1996, the State party considers that the author has never
demonstrated that members of his family or members of his wife's
family have been sought or intimidated by the Turkish authorities,
let alone arrested or tortured. This fact leads to the view that
the author and his family would therefore be in no danger of being
arrested or tortured in the event of their return to Turkey. (1)

4.12
Similarly, the author has never demonstrated that he has engaged
in activities which might have been beneficial to PSK. He was
not a member of this party but merely a sympathizer and, even
in this capacity, he acknowledged that he had never distributed
brochures for the party.

4.13
Lastly, the State party considers that the author's explanations
concerning the manner of his departure from Turkey with his family
are open to question. The Swiss Appeal Commission on Asylum Matters
considered it unlikely that a person wanted by the police would
have been able to leave Turkey from Istanbul airport without let
or hindrance. In view of the extremely strict security checks
carried out at this airport, it is likely that a false or forged
passport would have been detected. Moreover, the State party considers
implausible the contention that the passports were in the possession
of a third party.

4.14
The State party accordingly considers that the author's statements
do not permit the conclusion that there are substantial grounds
for believing, in accordance with article 3, paragraph 1, of the
Convention, that the author would be in danger of being subjected
to torture if the decision to return him to Turkey were carried
out.

The
author's comments

5.1 In
a communication dated 14 July 2000 the author commented on the
State party's observations.

5.2 Concerning
the date of the first arrest, he states that his counsel admits
having himself made a mistake over the dates, probably because
the author, too, confused them at the time of the second interrogation.
Nevertheless, while making it clear that this arrest occurred
in 1993, the author points out that it was not questioned by the
Swiss authorities.

5.3 As to his work within the party, the author wishes to make
it clear that, at his second interview, he stated that he shared
the party's ideas and supported the party, but that he did not
play an active part in it. In addition, he makes it clear that
he played a limited role in distributing the party newspaper.
Lastly, he recalls that he was arrested in 1993 because party
newspapers had been found in his apartment and he had been accused
of having distributed pamphlets.

5.4 The
author recalls that, in his appeal to the Swiss Appeal Commission
on Asylum Matters, he was prepared to give his friend's name and
address on condition that that information was not used by the
Swiss Embassy in order to carry out inquiries into their relationship.

5.5 Concerning
the inquiries carried out by the Swiss authorities in Turkey,
the author considers that it is impossible for a Turkish security
organization to give such information to Switzerland. As to the
apartment in Mersin, the author did not consider that information
to be sufficiently important. Furthermore, it was not true that
they had moved completely from Elazig to go and live in Mersin,
as the Swiss authorities maintained. Consequently, it could not
be said that it was impossible for the author to be arrested in
Elazig.

5.6 As
to the veracity of the medical examination conducted by Dr. M.,
if the Federal Office for Refugees had not contested the veracity
of the torture in 1993, the author wonders why the possibility
that he was still traumatized by that torture should be ruled
out, when it was known that he had been forced to remain standing
in freezing water and that his fingers had been squeezed with
pincers. Furthermore, Dr. M.'s description of the report as an
"expert report" was motivated by the request made by
the Federal Office for Refugees. However, the State party had
provided no information as to the form that the report should
take. Similarly, the psychiatric diagnosis of post-traumatic stress
disorder does not depend on measurable objective signs. In any
judicial procedure, if the medical report is considered to be
unsatisfactory, a second report must be requested.

5.7 In
the opinion of the State party, the author's brothers have not
been persecuted in Istanbul and Izmir because of him. Moreover,
the State party considers that the author and his family could
return to Turkey without any problem. However, the arrest of the
author's eldest son is not contested. In this connection, the
author maintains that his brothers and sisters live in Istanbul
and that he had little contact with them; furthermore, they were
too far from Elazig to be able to give any information about him.
As to the author's eldest son, he has not lived in Elazig since
the time the author arrived in Switzerland. The year the author
left, the son moved to Istanbul to live with his family.

5.8 As
to the State party's argument that the author has ceased to work
for PSK since his arrival in Switzerland, the author states that
PSK is very active in Switzerland, notably in Lausanne and Basel,
but not in Bern where he lives. Nevertheless, the author regularly
attends its meetings.

5.9 Concerning
the State party's doubts that the author had lived with a friend
who worked for PKK, the author maintains that his friend had completely
concealed his activities from the security forces. The security
forces had, however, visited Mr. K. in order to prevent him from
participating in certain activities. Mr. K. was quite old and
died in 1999.

Issues
and proceedings before the Committee

6.1 Before
considering any of the allegations in a communication, the Committee
against Torture must decide whether or not the communication is
admissible under article 22 of the Convention. It has ascertained,
as it is required to do under article 22, paragraph 5 (a), of
the Convention, that the same matter has not been and is not being
examined under another procedure of international investigation
or settlement. It also notes that all domestic remedies have been
exhausted and that the State party has not contested the admissibility
of the communication. It therefore considers that the communication
is admissible. As both the State party and the author have provided
observations on the merits of the communication, the Committee
proceeds with the consideration of those merits.

6.2 The
issue before the Committee is whether the return of the author
to Turkey would violate the obligation of the State party under
article 3 of the Convention not to expel or return a person to
another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.

6.3 The
Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would
be in danger of being subjected to torture if he was returned
to Turkey. In reaching this decision, the Committee must take
into account all relevant considerations, pursuant to article
3, paragraph 2, including the existence of a consistent pattern
of gross, flagrant or mass violations of human rights. The aim
of the determination, however, is to establish whether the individual
concerned would be personally at risk of being subjected to torture
in the country to which he or she would return. The existence
of a consistent pattern of gross, flagrant or mass violations
of human rights in a country does not as such constitute a sufficient
ground for determining that a particular person would be in danger
of being subjected to torture upon his or her return to the country.
There must be other grounds indicating that the individual concerned
would be personally at risk. Similarly, the absence of a consistent
pattern of gross violations of human rights does not mean that
a person might not be subjected to torture in his or her specific
circumstances.

6.4 The
Committee recalls its general comment on the implementation of
article 3, which reads: "Bearing in mind that the State party
and the Committee are obliged to assess whether there are substantial
grounds for believing that the author would be in danger of being
subjected to torture were he/she to be expelled, returned or extradited,
the risk of torture must be assessed on grounds that go beyond
mere theory or suspicion. However, the risk does not have to meet
the test of being highly probable" (A/53/44, annex IX, para.
6).

6.5 The Committee notes that the medical examination undergone
by the author indicated the presence of post-traumatic stress.

6.6 However,
on the basis of information submitted by the author, the Committee
notes that the events which prompted his departure from Turkey
date back to 1993 and appear to be linked in particular to his
relations with PSK. The purpose of the arrests and torture which
he says he underwent in 1993 and 1996 seemed to be to elicit information
or to induce him to collaborate with the security forces. On the
other hand, there is no indication that since his departure from
Turkey in 1996 the members of his family, and notably his son,
have been sought or intimidated by the Turkish authorities. Moreover,
the Committee takes note of the information furnished by the Swiss
Embassy in Ankara, which establishes that the Turkish police have
no file on the author.

6.7 In these circumstances, the Committee considers that the author
has not furnished sufficient evidence to justify his fear of arrest
and torture on his return.

6.8 The
Committee against Torture, acting under article 22, paragraph
7, of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, considers that the decision
of the State party to return the author to Turkey does not constitute
a breach of article 3 of the Convention.